1. Introduction
On the 24th of April 2024, the European Parliament approved at first reading a document presented in 2022 by the Commission.[1] The text, approved with heavy modifications, is that of the proposed Directive on combating violence against women and domestic violence.[2]
Not much has been written on the Proposal, which has mostly been overlooked by legal scholarship, and it does not seem to have spurred much debate among scholars.[3] This contribution will show where the Proposal comes from and what its contents are in broad outline, and will also try to identify certain critical features. The claim is not to provide a comprehensive analysis of the content of the initiative or its fallouts on the law of the Union (EU) and the Member States (MSs), which would be excessive for this venue as well as somewhat unnecessary, given the tentativeness of the text under consideration.
2. Context of the proposal
The commitment of the EU to fighting violence against women and domestic violence with particular regard to its online dimension was vigorously expressed by the Parliament,[4] and is a political key action of the von der Leyen Commission.[5]
But the Proposal is not only part of a political strategy. From a fundamental rights perspective, cyber and physical gender-based violence is a menace to the fundamental rights protected in the Charter of Fundamental Rights of the European Union, especially that of freedom from discrimination on the grounds of sex enshrined in Article 21.
The legislative intervention was necessary to align to the standard of protection also to the Istanbul Convention.[6] The text is part of the law of many EU MSs, but was also signed by the Council of the EU in 2017. Starting from its ratification in 2023, the Convention’s minimum standards of protection for victims of violence against women are part of the EU normative body.
The Proposal would be, in a way, complementary to the Convention, exercising that harmonization role that the latter could not. From a political perspective, the Proposal would send a clear message to the States that have not ratified it yet.[7] From a legal viewpoint, it would strengthen the protection granted by the Convention and extend it to crimes, such as virtual pornography, that are absent there.
3. Content of the Proposal
The complexity of a phenomenon such as gender-based violence is reflected in the multifaceted nature of the Commission’s plan. By simply skimming through the text of the Proposal, one can see how the same goal, combating physical and cyber violence against women and domestic violence, is approached from different perspectives and in different areas.
- Chapter 1 provides for some general provisions, covering for instance definitory aspects;
- Chapter 2 outlines minimum rules on the definition of criminal offences and penalties for certain behaviours of violence against women and domestic violence. In the original text of the Proposal, rape and female genital mutilation are criminalised as sexual exploitation of women. The other behaviours amount to computer crime offences: nonconsensual sharing of intimate or manipulated material, cyber stalking, cyber harassment, cyber incitement to hatred or violence. The remaining articles serve as corollary, for instance harmonizing incitement, aiding and abetting.
- Chapter 3 contains a series of provisions harmonising national measures on victims’ access to justice, targeting for instance their possibility to report a violence or be assigned a special treatment accounting for specific protection needs. Similar provisions must be coordinated with the EU legal instrument currently harmonising national regulations on victims’ rights, Directive 2012/29/EU;[8]
- Chapter 4 includes measures on extra-judicial victim support, such as specialist support (medical and psychological), helplines and shelters;
- Chapter 5 includes a series of preventive measures to spread awareness and to train professionals who enter into contact with victims;
- Chapter 6 contains several provisions directed at enhancing EU-level coordination, cooperation among different actors (governmental agencies, NGOs, service providers), and data collection and research;
- Chapter 7 contains the final provisions, for instance, amendments to the Child Sexual Abuse Directive.
4. Innovative and Ambitious Elements
The Proposal’s attempt to harmonise national substantive criminal law provisions makes it an uncommon and, to a certain extent, ambitious legislative intervention.
As it is well-known, the Commission cannot propose an initiative in areas not conferred upon the EU in the Treaties (principle of conferral, Article 5 TUE), whereas the use of EU competencies must always be justified with the requirements of subsidiarity (in areas of shared competence) and proportionality.[9]
Subsidiarity is present when «the objectives of the proposed action cannot be sufficiently achieved by the Member States […] but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level».[10] According to the Commission, this criterion is met because, although all MSs have already in place regulations on violence against women and domestic violence, the difference in their approach cannot guarantee sufficient protection for victims across the EU. Further, the urgency and breadth of violence against women and domestic violence have reached levels so high, and are so costly for the Union both in terms of economic loss and fundamental rights violation, to create a special need for EU intervention. Finally, cyberviolence against women, given its cross-border dimension, can be efficiently tackled only at the EU level.[11]
Proportionality, in the sense that the «content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties»,[12] is justified by the Commission on the basis of preparatory works demonstrating that a single normative intervention consisting of a broad range of measures is the best way to ensure an effective response to a problem so deeply rooted in society.[13]
But does the EU actually have the competence to legislate in this area? In other words, what is the legal basis for the intervention? While the part of the Proposal establishing minimum rules on the rights of victims finds an undisputable legal basis in Article 82(2) TFEU,[14] the possibility for the Union to define criminal offences and minimum sanctions constitutes a different, more complex problem.
The instrument of criminal law, as the most severe way to respond to misbehaviours, is traditionally considered a privilege and a duty of MSs. The Lisbon Treaty has assigned the EU limited competence as a substantive criminal legislator, one basically confined to the exhaustive list of “euro-crimes” identified in Article 83(1) TfEU, which are particularly serious crimes with cross-border dimensions.[15]
In the Proposal, the Commission argues that two separate euro-crimes provide the legal basis for the minimum rules in Chapter 2. Rape and female genital mutilation amount to sexual exploitation of women and children, while non-consensual sharing of intimate or manipulated material, cyber stalking, cyber harassment and cyber incitement to violence or hatred are considered computer crime. The choice of the Commission leaves some doubts.
First, the interpretation of “exploitation” seems too broad, compared with the dictionary definition of «the act of using someone or something unfairly for your own advantage»,[16] especially considering that Article 83(1) TFEU associates trafficking in human beings and sexual exploitation of women and children, and therefore seems to refer to situations other than rape.
Second, the presence of a double legal basis may produce a schizophrenic result. As rape is criminalized only under the sexual exploitation of women legal basis, its harmonization is imposed only with regard to female victims. Although rape does disproportionately affect women and girls, this wording excludes men and non-binary people. Instead, other behaviours certainly less harmful, such as cyber harassment or threat, include men and non-binary people as victims, as a “gender-neutral” legal basis covers them. So, the presence of a double legal basis would result in this: MSs are required to harmonize definitions and sanctions related to cybercrimes victimizing any person, while the harmonization of a more offensive conduct, rape, falls only on women.
On a side note, it is worth noting the attention paid by the Commission to a form of gender-based cybercrime, image-based sexual abuse (or revenge porn, as it is normally known). The interest from the Commission extends beyond its traditional modes – think of the sadly frequent occurrence of the publication of intimate material following the end of a relationship – to new forms of perpetration, such as the so-called “deepfake pornography”.
The latter is a form of image-based sexual abuse, with the peculiarity that the content shared is created with an artificial intelligence capable of “nudifying” someone: by providing the algorithm with samples of the face of the targeted person, it can superimpose their likeness onto someone else’s body. Art. (b) of the Proposal treats equally sharing real and fake intimate material without the consent of the person depicted, a choice that would put the EU at the forefront of the fight against virtual pornography.
5. The European Parliament’s Position: First Reading
The Parliament reworked the text of the Proposal, which may be further modified through the course of the ordinary procedure.
The issue of the legal basis was not addressed by the Parliament, which proceeded along the way shown by the Commission. However, the issue is set aside considering that rape has disappeared from the text of the Proposal. Indeed, no agreement had been reached in the political forum back in February 2024 on the criminalisation of rape based on lack of consent, as proposed by the Commission.[17] In its place, forced marriage is introduced as a criminally relevant conduct.
A relevant change also involves the non-consensual sharing of intimate or manipulated material. The text now requires that “such conduct is likely to cause serious harm to that person”, a wording that can potentially undermine the ability of national courts to apply these standards, both because it is a rather vague expression and because it requires an often extremely difficult proof.
6. Conclusion
For certain aspects, the Commission’s Proposal would play a much-needed harmonization role. For instance, MSs have particularly different legislation on image-based sexual abuse, and they largely ignore deepfake pornography.[18] But next to ambitious and innovative elements, there are elements of ambiguity and uncertainty pertaining to both the original text and the parliamentary amendments. Perhaps, better would it be to expand the list of euro-crimes in Article 83(1) to include violence against women, as proposed by the Parliament and recommended by the European Economic and Social Committee.[19]
In conclusion, much depends on the way the text will be approved. In such a sensitive context as the harmonization of the criminalization of a conduct, even a slight change of wording can heavily impact national laws. For instance, the Parliament’s changes to the provision regarding the non-consensual sharing of intimate material may frustrate the enforceability of the provision altogether.
Under the ordinary procedure, there will now have to be a vote by the Council, which can either accept the Parliament’s modifications or introduce changes that will lead to a second reading in Parliament.
[1] European Parliament, ‘Legislative resolution of 24 April 2024 on the proposal for a directive of the European Parliament and of the Council on combating violence against women and domestic violence’ (COM(2022)0105 – C9-0058/2022 – 2022/0066(COD)).
[2] Commission, ‘Proposal for a Directive of the European Parliament and of the Council on combating violence against women and domestic violence’ COM(2022) 105 final.
[3] Two contributions on the Proposal are: C. Rigotti & C. McGlynn, Towards an EU criminal law on violence against women: The ambitions and limitations of the Commission’s proposal to criminalise image-based sexual abuse, in New Journal of European Criminal Law, 13-4, 2022, 452-477; M. Picchi, Violence against Women and Domestic Violence: The European Commission’s Directive Proposal, in Athens Journal of Law, 8-4, 2022, 395-408.
[4] For instance, see: European Parliament, ‘Resolution of 14 December 2021 with recommendations to the Commission on combating gender-based violence: cyberviolence’ (2020/2035(INL)).
[5] Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – A Union of Equality: Gender Equality Strategy 2020-2025’ COM(2020) 152 final.
[6] Council of Europe, Convention on preventing and combating violence against women and domestic violence, 11 May 2011, ETS 210.
[7] As of today, the Convention has not been ratified in Bulgaria, Czech Republic, Hungary, Lithuania, and Slovak Republic. A list of countries that have not ratified yet the Convention can be found on the Council of Europe website.
[8] Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA [2012] OJ L 315/57.
[9] Protocol (No 2) on the application of the principles of subsidiarity and proportionality, annexed to the Treaty
on European Union and the Treaty on the Functioning of the European Union by the Treaty of Lisbon of 13 December 2007, Article 5.
[10] Consolidated Version of the Treaty on European Union [2012] C 326/13, art. 5(3).
[11] Proposal for a Directive on combating violence against women and domestic violence, 9.
[12] Consolidated Version of the Treaty on European Union, art. 5(4).
[13] Proposal for a Directive on combating violence against women and domestic violence, 10.
[14] European Parliament, ‘List of legal bases providing for the ordinary legislative procedure in the Treaty of Lisbon’.
[15] Although the list could be expanded with the procedure outlined in art. 83(2) TEU.
[16] Online Cambridge Dictionary, “Exploitation”.
[17] European Commission – Press release, ‘Commission welcomes political agreement on new rules to combat violence against women and domestic violence’, 6 February 2024.
[18] See the special report of the Commission: S. De Vido & L. Sosa, Criminalisation of gender-based violence against women in European States, including ICT-facilitated violencev, Luxembourg, 2021.
[19] Respectively: European Parliament, ‘Resolution of 16 September 2021 with recommendations to the Commission on identifying gender-based violence as a new area of crime listed in Article 83(1) TFEU’ (2021/2035(INL)); European Economic and Social Committee, ‘Opinion – Combating violence against women’ (SOC/726).
